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United States District Court, S.D. California

September 19, 2005.

JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: IRMA GONZALEZ, District Judge

[Doc. Nos.
Plaintiff Beatriz Escobedo ("Escobedo") brings the instant motion for summary judgment seeking the reversal of Commissioner Jo Anne B. Barnhart's ("defendant") denial of Escobedo's application for disability insurance benefits, or, in the alternative, for a remand to the Social Security Administration for a decision in accordance with the applicable law. Defendant moves for summary judgment on cross-motion. For the reasons stated herein, the Court denies Escobedo's motion for summary judgment and grants defendant's cross-motion for summary judgment.


  A. Work and Medical History

  1. Physical Impairments

  Escobedo was born on September 7, 1941, and was fifty-nine years old at the time of her alleged disability onset. (Administrative Transcript ("Tr.") 26.) Escobedo has no formal education, and has past relevant work as a fabricating machine operator. Id. Escobedo claims disability from May 28, 1998 due to left hand and arm problems. (Tr. 13.)

  Escobedo has undergone three surgeries on her left hand: one on her left finger in 1995 and two on her left thumb, the first in 1997 and the second in 1998. (Tr. 143, 190, 219-220.) Escobedo first underwent surgery on her left thumb in November 1997 in order to relieve the pain caused by triggering.*fn1 While Escobedo continued to suffer pain in her left thumb after the surgery, her orthopaedic surgeon, Dr. John G. Ellis, found that she could continue her employment duties without any restrictions. (Tr. 128-129.)

  In July 1998, Escobedo began seeing Dr. Mark H. Mikulics, a board certified orthopedic surgeon with a specialty in hand surgery. Dr. Mikulics was Escobedo's primary treating physician from July 1998 through June 1999. (Tr. 189-238.) On August 19, 1998, Dr. Mikulics opined that Escobedo's 1997 surgery "was not successful [because] [s]he continues to complain of pain and triggering." (Tr. 229.) As a result, he found that she was temporarily partially disabled and could not return to work unless modified duty was available. (Tr. 230.) Dr. Mikulics recommended a second surgery on Escobedo's left thumb in order to treat her trigger. Id.

  Escobedo underwent a second left thumb flexor tenosynovectomy in order to relieve the pain caused by her left thumb trigger on October 2, 1998. (Tr. 197.) Escobedo continued to see Dr. Mikulics for treatment after the surgery. Dr. Mikulics performed a final orthopedic examination of Escobedo on June 9, 1999. (Tr. 189-193.) Escobedo continued to complain of thumb pain. (Tr. 190.) Dr. Mikulics opined that Escobedo: (1) was limited to very light grasping; (2) was precluded from repetitive gripping; (3) had lost ninety percent of her preinjury capacity for pinching; and (4) had lost fifty percent of her preinjury capacity for twisting, torquing, pushing, and pulling. As a result, he found that Escobedo could not perform the usual and customary duties at her then present employment and qualified for injured worker and vocational rehabilitation. (Tr. 193.)

  On March 13, 2000, Dr. Paul C. Milling, a board certified orthopedic surgeon examined Escobedo. Escobedo complained of pain in her left hand, wrist and fingers, of weakness in her left hand, and of an inability to use the hand. (Tr. 240-241.) However, on examination, Dr. Milling found "no limitation of motion" in her wrist or hand; that Escobedo could make a "full fist" and "fully" extend her fingers; and that she was able to flex her thumb without catching. (Tr. 241.) Dr. Milling also noted that Escobedo displayed fine motor control. Dr. Milling found Escobedo's claims of generalized tenderness through her wrist and thumb to be "all non-specific, and . . . very inappropriate." Id. Based on his examination, Dr. Milling concluded that Escobedo could lift and carry twenty pounds occasionally and ten pounds frequently; stand and walk for six hours cumulatively in an eight-hour day; stoop and crouch occasionally; and had the ability to use her hands and fingers for repetitive hand/finger actions. (Tr. 241-242.)

  2. Testimony at the Administrative Hearing

  Escobedo, a medical expert, and a vocational expert testified at Escobedo's administrative hearing before Administrative Law Judge ("ALJ") Albert Tom. Escobedo was represented by counsel, David M. Shore. (Tr. 22.)

  Escobedo testified that she had worked as a machine operator for the past twenty-two and one half years in the fabrication of hospital parts, like masks and intravenous tubes. (Tr. 26-27.) She testified that she liked her job, but because she could "barely use" her left hand, she was no longer able to do it. (Tr. 28.) Her daily activities include visiting her daughter and her grandchildren. (Tr. 31.) Escobedo does light housework and can cook as long as she does not have to chop. Id.

  Dr. Eric C. Yu testified as a medical expert at the hearing. (Tr. 36-45.) Dr. Yu, based on his review of the medical evidence in the record, opined that Escobedo was limited to light level work; that she was limited to occasional stooping, bending, and crouching for prophylactic reasons; that she was limited, prophylactically, to occasional overhead use of her left hand; that she was precluded, also prophylactically, from climbing ladders and being around vibrating machinery; and that she was precluded from constant or repetitive fingering and handling (which by definition, he stated, included grasping). (Tr. 41-42.)

  Robert Metcalf testified at the hearing as a vocational expert. (Tr. 45-53.) Metcalf classified Escobedo's past work as a fabricating machine operator. (Tr. 46.) The ALJ posed two hypothetical questions to Metcalf. The first hypothetical presupposed a fifty-nine year old woman with no formal education, with physical limitations as testified to by Dr. Yu. Metcalf opined that a woman so limited would be able to perform her past relevant work. (Tr. 47.) The second hypothetical presupposed a woman with the limitations as testified to by Escobedo. Metcalf testified that a person so limited would not be able to perform her past relevant work and would not have any transferable skills. (Tr. 48.)

  B. Procedural Background

  Escobedo filed an application for a period of disability and disability insurance benefits ("DBI") under Title II of the Social Security Act on January 18, 2000. (Tr. 86-89.) The Social Security Administration denied Escobedo's application initially and upon reconsideration. (Tr. 57-61, 63-66.) Thereafter, Escobedo requested a hearing before an Administrative Law Judge.

  On May 8, 2001, ALJ Albert Tom held a de novo hearing with Escobedo, her attorney, a vocational expert, and a medical expert. (Tr. 456.) After the hearing, the ALJ found that Escobedo was not disabled because she could perform her past relevant work. (Tr. 18.) The Appeals Council denied Escobedo's application for administrative review. (Tr. 63-66.) Escobedo now seeks judicial review of the ALJ's decision under 42 U.S.C. § 405 (g).

  On July 13, 2005, Escobedo moved for summary judgment. (Doc. No. 19.) On March August 11, 2005 defendant filed a cross-motion for summary judgment along with an opposition to Escobedo's motion for summary judgment. (Doc. No. 21.) Escobedo did not file an opposition to defendant's cross-motion for summary judgment. (Doc. No. 17.) The Court now turns to these motions.


  A. Scope of Review

  Section 405(g) of the Social Security Act ("the Act") affords an unsuccessful claimant the opportunity to seek judicial review of a final agency decision of the Commissioner of Social Security. 42 U.S.C. § 405(g). In reviewing the Commissioner's decision, a court must consider the record as a whole, weighing both the evidence that supports and detracts from the Commissioner's conclusions. Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988). The scope of judicial review is limited, however. A reviewing court may not disturb the Commissioner's final decision unless the court finds either that (1) the ALJ's findings of fact are not supported by substantial evidence, or (2) the ALJ failed to apply the proper legal standards. Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The term "substantial evidence" refers to such relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion. Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993); Desrosiers, 846 F.2d at 576 (substantial evidence means "more than a scintilla, but less than a preponderance"). If the evidence supports more than one rational interpretation, the court must uphold the ALJ's decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). A reviewing court must set aside the ALJ's decision if the ALJ failed to apply the proper legal standards in weighing the evidence or in reaching his or her decision. Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978).

  Section 405(g) permits a court to enter a judgment affirming, modifying, or reversing the Commissioner's decision, or remanding the matter to the Social Security Administration for further proceedings. 42 U.S.C. § 405(g). A reviewing court may credit evidence and remand for an award of benefits outright where (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues to be resolved before a determination of disability can be made, and (3) the record clearly shows that the ALJ would be required to find the claimant disabled were the evidence credited. Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996).

  B. Substantive Legal Standard

  In order to qualify for disability benefits, a plaintiff must establish a medically determinable physical or mental impairment that is expected to result in death or to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); Barker v. Sec'y of Health & Human Servs., 882 F.2d 1474, 1476 (9th Cir. 1989). The plaintiff has the initial burden of proving that the disabling condition prevented her, during the relevant period, from engaging in any of her previous occupations. Sanchez v. Sec'y of Health & Human Servs., 812 F.2d 509, 511 (9th Cir. 1987). The burden then shifts to the Commissioner to show that the plaintiff can engage in other types of substantial gainful work available in the national economy. Gonzales v. Sec'y of Health & Human Servs., 784 F.2d 1417, 1419 (9th Cir. 1986). If the plaintiff is able to perform a number of other jobs existing in the national economy consistent with the plaintiff's medically determinable impairments, functional limitations, age, education, and work experience, then the plaintiff is not disabled within the meaning of the Act. Green v. Heckler, 803 F.2d 528, 530 (9th Cir. 1986).

  The Commissioner has established a five-step sequential process for determining eligibility under the Act:

Step 1: Is the claimant presently working in a substantially gainful activity? If so, the claimant is "not disabled." If not, the evaluation proceeds to step two.
Step 2: Is the claimant's impairment severe? If not, the claimant is "not disabled." If the claimant's impairment is severe, the evaluation proceeds to step three.
Step 3: Does the impairment "meet or equal" one of a list of specific impairments described in the regulations? If so, the claimant is "disabled." If the claimant's impairment neither meets nor equals one of the listed impairments, the evaluation proceeds to step four.
Step 4: Is the claimant able to do any work that he has done in the past? If so, the claimant is "not disabled." If not, the evaluation proceeds to step five.
Step 5: Is the claimant able to do any other work? If not, the claimant is "disabled." If the claimant can do other work, the Commissioner must establish that there are a significant number of jobs in the national economy that the claimant can do.
20 C.F.R. §§ 404.1520(a)-404.1520(f) (2002). See also Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).

  C. Decisions of the Social Security Administration

  At step two of the process, the ALJ found that Escobedo suffered from a severe left hand impairment. (Tr. 17; see 20 C.F.R. § 404.1521.) At step three, the ALJ found that Escobedo's impairment was not attended by clinical findings meeting or equaling the criteria of the impairments set forth in Appendix 1, Subpart P, of Social Security Regulation No. 4. Id. At step four, the ALJ found that Escobedo was able to perform her past relevant work. Id. On the basis of this finding, the ALJ concluded that Escobedo was not disabled under the Act. Id. The ALJ's specific findings were:

1. The claimant met the disability insured status requirements of the Act on May 28, 1998, the date the claimant stated she became unable to work, and continues to meet them through December 2003.
2. The claimant has not engaged in substantial gainful activity since May 28, 1998.
3. The medical evidence establishes that the claimant has severe left hand impairment, but that she does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.
4. The claimant's allegations of disabling pain, excess pain, and limitation, when considered pursuant to the law of the Ninth Circuit Court of Appeals and Social Security Ruling 96-7p, have been rejected for the reasons enunciated in the rationale portion of this decision, which the undersigned believes are clear and convincing and are incorporated herein by reference.
5. The claimant has the residual functional capacity to perform work related activities except for work involving lifting or carrying more than 10 pounds frequently and 20 pounds occasionally; more than occasional bending, crouching, stooping, and overhead use of the left hand; any climbing of ladders, being around vibrating equipment, and constant or repetitive handling or fingering (20 SFR 4040.1545).
6. The claimant's past relevant work as a fabricating machine operator did not require the performance of work related activities precluded by the above limitation(s) (20 CFR 404.1565).
7. The claimant's impairments do not prevent the claimant from performing her past relevant work.
8. The claimant was not under a "disability" as defined in the Social Security Act, at any time through the date of the decision (20 CFR 404.1520(e)).
D. Escobedo's Allegations of Error

  1. The ALJ Improperly Relied on the Vocational Expert's Responses to the Hypotheticals

  Escobedo asserts that the ALJ's finding that Escobedo could return to her past relevant work is not supported by substantial evidence because the vocational expert improperly used the Dictionary of Occupational Titles ("DOT") in reaching his conclusion.*fn2 (Memo. ISO Motion at 17:9-12.)

  "Hypothetical questions posed to the vocational expert must set out all the limitations and restrictions of the particular claimant . . . [I]f the assumptions in the hypothetical are not supported by the record, the opinion of the vocational expert that claimant has a residual working capacity has no evidentiary value." Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). The ALJ is free, however, to "accept or reject restrictions in a hypothetical question that are not supported by substantial evidence," and is not required to accept opinion evidence on the ultimate question concerning claimant's inability to perform work. Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001). Lastly, an ALJ may properly limit a vocational expert hypothetical to those impairments supported by substantial evidence. Id.

  Escobedo argues that the vocational expert's testimony has no evidentiary value because he relied on the wrong DOT section. At the administrative hearing, the vocational expert testified that the most accurate DOT section for Escobedo's past relevant work was 712.684-042. (Tr. 48.) DOT number 712.884-042 details the work requirements of an artificial breast fabricator.*fn3 Escobedo argues that her past relevant work is properly defined as a surgical garment assembler.*fn4 (Memo. ISO Motion at 14:3-11.) Escobedo argues that this distinction is important because, while both jobs are considered light work, industrial, and unskilled, "an assembler of surgical garments requires a higher level of specific vocational preparation and more advanced general educational development." (Memo. ISO Motion at 14:6-9.) It is unclear why Escobedo believes that this distinction is important. If anything, the latter classification supports the ALJ's conclusion that Escobedo was not disabled because she is able to handle more complex assembly jobs.

  Further, to the extent that Escobedo attempts to characterize the vocational expert's testimony as inconsistent with the above DOT definitions, she fails. Escobedo claims that the vocational expert did not consider the "frequent" handling and fingering requirements of Escobedo's past relevant work. To the contrary, the vocational expert testified that the DOT classified Escobedo's job, as well as most machine jobs, as requiring "frequent" reaching, handling, and fingering. (Tr. 48.) The vocational expert defined "frequent" as being "one third to two thirds of the day," and specifically stated that it did not mean constant. Id. This testimony is consistent with the DOT section the vocational expert cited, 712.684-042, as well as the DOT section upon which Escobedo relies, 712.684-010. Accordingly, Escobedo's argument that the vocational expert did not address the fact that Escobedo's past relevant work required "frequent" handling and fingering is wholly without merit.

  Lastly, the ALJ was not required to incorporate the limitations found by Dr. Mikulics into his hypothetical questions to the vocational expert because he properly rejected Dr. Mikulics's limitations. (Tr. 16.) The ALJ rejected Dr. Mikulics's opinion that Escobedo could not work because it was inconsistent with and not supported by his contemporaneous examination findings. (Tr. 16; see Weetman v. Sullivan, 877 F.2d 20, 23 (9th Cir. 1989) (no error where ALJ rejected treating physician's opinion because findings were inconsistent with contemporaneous findings). Since the ALJ rejected Dr. Mikulics's findings, he did not err in excluding Dr. Mikulics's limitations from the hypotheticals he posed to the vocational expert. Osenbrock, 240 F.3d at 1164-65.

  In sum, the vocational expert's opinion constituted substantial evidence upon which the ALJ properly relied in concluding that Escobedo was not disabled under the Act.


  For the foregoing reasons, the Court finds that the ALJ's decision was supported by substantial evidence and not based on legal error. The Court therefore DENIES Escobedo's motion for summary judgment in its entirety, and GRANTS defendant's cross-motion for summary judgment in its entirety.



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